MAN CONVICTED UNDER THE CRIMINAL CODE FOR BRINGING A BOOMERANG DURING A BRAWL APPEALS HIS CONVICTION
THOMAS -v- CHRISTIAN [2021] WASC 151 (14 May 2021)
This is an appeal against the conviction of the applicant who brought a boomerang during a brawl at a public place. He alleges the circumstance of sudden or extraordinary emergency which entitles him to acquittal.
Facts:
On 17 June 2020, the appellant was convicted after a trial in the Esperance Magistrates Court of being armed with a dangerous weapon in circumstances that were likely to cause fear to any person contrary to S.68(1) of the Criminal Code (WA). He was fined $1,000 and ordered to pay costs. He now seeks leave to appeal against his conviction.
There are two grounds of appeal. The first is that the learned magistrate erred in law by applying the incorrect burden and standard of proof to the defense of emergency raised at the trial. The second is that the learned magistrate erred by failing to disclose in her reasons how the prosecution had proven that the defense of emergency did not apply.
On 31 August 2019, the Esperance Football Club played in the local league grand final. The game was played at the opposing team's grounds in Gibson and ended at about 4:00 pm.
Later that evening there was a fight between two men. Things calmed down for a while and then a car arrived with a number of men. There was an altercation which soon descended into an all-in brawl eventually involving, according to one police officer, approximately 150 people.
The appellant was not initially at the football ground, but he believed that his son and nephews were. In evidence, he said that he received a telephone call from his partner's niece, who he believed was also at the football ground. She was screaming and shouting saying things like 'they're mobbing us, they're killing us, they're going to kill us'.
The appellant and his partner then drove to the football ground. There were also other relatives in the car. He said that he was motivated to get there as quickly as he could so he could protect his son and nephews. On arrival, he saw a big gathering and a number of people fighting. He pulled up, reached into the back of the car and 'grabbed the first thing I could see', which was a boomerang.
The appellant said that he jogged down the road, carrying the boomerang, looking for his son. He said he had the boomerang at his side and did not raise it at anybody. It was intended as protection for himself.
The appellant later gave the boomerang to one of his nephews and told him to put it back in the car. The boomerang was handed to a police officer at the scene by a person who was not identified. It was described at the hearing as a large boomerang and as a traditional hunting weapon.
The defense case was that the appellant's actions were not such as to be likely to cause fear to any person. In addition, the defence argued that the appellant acted in circumstances of sudden or extraordinary emergency. In particular, that the appellant believed that his son and other members of his family were at risk of being seriously harmed and that the carrying of the boomerang was a necessary response to that emergency. Further, it was submitted that his action in carrying the boomerang was a reasonable response to the emergency in the circumstances as he believed them to be and that there were reasonable grounds for his beliefs.
Issue: Should the applicant be acquitted?
Law:
- S.25 of the Criminal Code
Analysis:
In the present case, the magistrate correctly accepted that the defense of emergency had been raised on the evidence and needed to be addressed. Her Honour's analysis involved a consideration of whether she accepted the evidence going to each of the elements of emergency. She said that she accepted that the appellant had a subjective belief that an emergency existed and that attending at the scene was a necessary response to that emergency. She did not specifically refer to whether carrying a weapon was believed by the appellant to be necessary. However, it can be assumed she accepted this as she said that the defence failed in respect of the objective components. In this regard, she said that the telephone call from the appellant's partner's niece was not sufficient to ground a reasonable belief that 'something specifically was happening to his son'. She then said that going to the scene armed was not a reasonable response to the emergency as perceived by the appellant.
Had her Honour said no more than this, it might have been open to infer that she had satisfied herself that the defense had been excluded by the prosecution because the objective elements of it had been excluded beyond reasonable doubt. However, no such inference can be drawn because her Honour concluded by expressly stating that she was satisfied that the defencse of emergency had not been made out 'on the balance of probabilities'. This makes it clear that her Honour operated on the erroneous view that the onus was on the appellant to make out the defense and that the standard required was the balance of probabilities. The proper approach would have been to ask whether the prosecution had negated any of the elements of emergency beyond reasonable doubt.
Conclusion: The appeal is allowed. The conviction is set aside.
